Refugee: what does it mean?

‘Refugee means a third country national who, owing to a well-founded fear of being persecuted for reason of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country…’ Art. 2(c), Directive 2004/83

Sexual orientation and refugee status: what is the link?

• Today lesbian, gay, bisexual and transgender (LGBT) people are still openly discriminated in many countries worldwide because of their sexual identity and orientation, their gender identity or expression. Direct or indirect discrimination practices, in different areas of life, are the consequences of people’s intolerance against homosexuality in its broader meaning: most of the times society they belong to and predominant culture expresses their rejection through unequal treatment related to the access conditions to goods, facilities and services.

• In some more critical and extreme cases a considerable part of LGBT people experience in their every day life episodes of effective persecution/abuse, both psychological and physical, a result of pervasive violent feelings of hate, fear and anger against homosexuals.

• In some countries- especially third world countries [1]- stigmatization of same sex consensual acts is officially/politically supported and regulated by national legal frameworks, contravening on a regular basis international human rights standards by criminalizing sexual orientation and persecuting homosexuals.

• Homophobic attitudes affecting these realities is the main reason why LGBT people are forced to remain in the closet, leading a double life and publicly dissimulating their sexual orientation to avoid the risk of both social and legal sanctions. In these countries LGBT peoples cannot always conduct a safe, fair and free existence; their social belonging and daily living conditions are constantly at risk due to the lack of a proper legal framework regulating homophobic behaviors and social inclusion of LGBT people and because of public authorities and representative institutions failing in ensuring protection and respect of their fundamental human rights.

• Bullying and harassment as well as discrimination and prejudicecan affect not only physically but also the mental health of a human being and represents violations of the fundamental human rights as ratified by the Universal Declaration of Human Rights.

• An increasing number of LGBT people coming from these countries feel the need to apply for a visa under the asylum/refugee law on the basis of the 1951 international Convention Related to the Status of Refugees (Geneva Convention).

Recognise persecution on the basis of sexual orientation (gender identity and expression)

• Although persecution on the basis of one’s sexual orientation is not listed in thequalifications (for the eligibility for the refugee status) enabling a person being eligible of refugees status, worked out by the United Nations High Commissioner for Refugees (UNHCR) in 1951 [2], since 1993 that definition has been recognizing repeatedly that lesbian, gay and bisexual people are to be seen as “members of a particular social group” and therefore should enjoy the protection against persecution under the Geneva Convention. This opinion however is the opinion of the UNHCR. It is important and weighty. But it is not binding upon the contracting states. [3]

• Even if the immigration laws in certain developed countries such as Belgium, Norway, Greece, Australia, New Zealand, Austria, Finland, Ireland, Netherlands, Latvia and a few others permit seeking asylum on the grounds of sexual orientation (a homosexual person can apply for asylum in the countries mentioned above, if he can adequately prove that his bodily integrity and security are under threat in the country of origin) there are nations which are still reluctant to refine immigration laws pertaining to asylum by including cases where truly a person’s life is being threatened due to sexual orientation.

• The Directive 2004/83/EC adopted in 2004 by the European Union represents one of the main steps that have been taken in this context, setting out the minimum rules governing conditions under which refugee status is granted and recognizing LGBT amongst those who could be awarded refugee status and apply for asylum.

· In 2000 The Council of Europe expressed through the Recommendation 1470 his concerns about the fact that immigration policies in most Council of Europe member states discriminate against lesbians and gays. In that occasion, the Assembly underlined also the fact that the majority of them do not recognized persecution for sexual orientation as a valid ground for granting asylum, nor do they provide any form of residence rights to the foreign partner in a bi-national same-sex partnership; the rules concerning family reunion and social benefits usually do not apply to same-sex partnerships.

ILGA-EUROPE is fighting for the rights of persecuted LGBT people to claim asylum

During the negotiation of the Directive 2004/83/EC, ILGA-Europe and national LGBT organisations campaigned for explicit reference to persecution on the basis of sexual orientation and gender identity.

ILGA-Europe’s main concerns in this field are:

• The promotion of LGBT people’s rights to apply for asylum/awarding asylum (or subsidiary protection) in cases of sexual orientation persecution

• To promote the need to grant basic social rights -such as employment, healthcare, housing and education- of persons once they are recognized as refugees.

To this end ILGA-Europe’s aim is:

• To strengthen EU policy in relation to:

- The set of national minimum standards/criteria on the recognition of refugees, which consider sexual orientation and gender identity as a basis to grant refugee status/ asylum

- The inclusion of explicit reference to persecution on the basis of sexual orientation and gender identity in national and European legislation.

• Ensure the proper application of the Directive 2004/83/EC in member countries’ national legislation.

How?

• By monitoring the implementation process in EU member states and checking their domestic legislation complies with the Directive on refugee status.

• By publishing up-to-date information, lobbying campaigns and advocacy activities.

• By providing EU Institutions with information and documentation materials collected in collaboration with local and national member associations.

• By promoting a constant dialogue between the social parts represented by the ILGA-Europe, its members and the EU Institutions.

• By supporting the EU Institutions in the ongoing achievement of its main objectives and in the strengthening process of its role as warrantor of fundamental human rights at European level and in third countries.

[1] For the complete lists of countries which criminalise same-sex consensual sexual acts see Ilga-Europe’s Report June 2005 ‘Rights not crimes: the EU’s role in ending criminalisation of same sex acts in third countries Appendix I

[2] Convention relating to the Status of Refugees Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950

[3]A Little Bit Safe? Asylum on the Basis of Sexual Orientation Persecution in Europe, Paper presented at the Business Law International Conference of the International Bar Association (IBA), Cancun 28 October - 2 November 2001 by Helmut GRAUPNER, JD.